Chisholm v. Georgia Lost in 1793 and the States Answered With the 11th Amendment

People who complain that the Supreme Court gets the last word on the Constitution should study the year 1793. The Court handed down a major constitutional ruling in February. The states took one look at it and decided the Justices had misread the document. Within about a year, Congress had proposed an amendment to overturn it. Within two, the states had ratified it. The Court's first great constitutional decision was also the first one the American people reversed.

The case was Chisholm v. Georgia, and the amendment it provoked is the Eleventh. The story is short, dramatic and packed with lessons about sovereignty, federalism and who really holds the final word under our Constitution. It also features some of the best minds of the founding generation disagreeing in public, which is always worth watching.

The debt behind the case

During the Revolutionary War, Georgia needed supplies. In 1777, commissioners acting for the state bought goods from Robert Farquhar, a merchant of Charleston, South Carolina. Georgia did not pay. Farquhar died in 1784, and the claim passed to the executor of his estate, Alexander Chisholm, also of South Carolina.

Chisholm tried the ordinary routes and got nowhere. So in 1792 he did something new. He filed suit against the state of Georgia directly in the Supreme Court of the United States, invoking the Court's original jurisdiction.

His legal basis was the text of Article III. Section 2 extends the judicial power of the United States to a list of cases and controversies, including controversies:

between a State and Citizens of another State

It also gives the Supreme Court original jurisdiction in cases "in which a State shall be Party." Read literally, the clauses seemed to authorize exactly what Chisholm wanted: a citizen of South Carolina suing the state of Georgia in the Supreme Court.

What the ratifiers had been promised

That literal reading collided with what many Americans believed they had been told during ratification.

Anti-Federalists had warned that Article III would expose the states to suits by private creditors, including holders of Revolutionary War debts and British claimants. Leading Federalists answered that it would not. Alexander Hamilton, in Federalist 81, wrote:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.

He went on to say that this was the general sense and the general practice of mankind, and that the exemption was one of the attributes of sovereignty the states still enjoyed. At the Virginia ratifying convention, James Madison and John Marshall offered similar assurances, Madison saying in substance that the clause did not give individuals the power to call any state into court, and that it would operate only where a state was the plaintiff.

So the ratifiers were told one thing. The text, read one way, said another. Chisholm put the question to the Court.

Georgia refuses to show up

Georgia's answer was to refuse to appear. The state sent a written protest denying that the Court had any jurisdiction to hear a suit against a sovereign state brought by an individual. Chisholm was represented by Edmund Randolph, who was then Attorney General of the United States but argued the case as private counsel, which tells you how differently the office worked in 1793. No one argued on Georgia's behalf at the hearing.

On February 18, 1793, the Court decided the case. In those days each Justice wrote his own opinion, delivered one after another, a practice called seriatim. Four Justices ruled for Chisholm: Chief Justice John Jay and Justices William Cushing, John Blair and James Wilson. One, Justice James Iredell of North Carolina, dissented. Georgia, the Court held, could be sued.

The opinions: Wilson, Jay and Iredell

James Wilson and the sovereignty of the people

The most ambitious opinion came from James Wilson of Pennsylvania, one of the leading minds at the Constitutional Convention. Wilson attacked the very idea of state sovereignty as the Georgia protest framed it. He noted that the word "sovereign" appears nowhere in the Constitution. In America, he argued, the people are sovereign; they formed the Union and ordained the Constitution. The states were their creations, not their masters, and a state was as answerable to justice as any individual. His conclusion was blunt:

As to the purposes of the Union, therefore, Georgia is NOT a sovereign State.

Wilson's theory of popular sovereignty is a serious and in many ways admirable one. He put the people at the center of the constitutional order, as we discuss in James Wilson, the Forgotten Founder Who Put the People at the Center. But applied here, it ran straight into what the ratifiers had been told.

John Jay and republican equality

Chief Justice Jay emphasized equality under law. If a state could sue a citizen of another state, as everyone agreed it could, why should the citizen not be able to sue the state? A republic, in his view, should not hold its governments above the obligations of justice. Jay also pointed to the Constitution's purposes, including its promise in the Preamble to establish justice.

James Iredell's dissent

Justice Iredell took a narrower and more lawyerly path. He looked to the Judiciary Act of 1789, which gave the Court its procedures, and to the common law as it stood when the Constitution was adopted. Neither, he argued, provided for a suit by a private individual against a sovereign without its consent. The Constitution described categories of jurisdiction; it did not abolish the background rule of sovereign immunity that every ratifier understood. Iredell also signaled, more cautiously, that he doubted the Constitution itself permitted such suits.

The dissent would have a long afterlife. Nearly a century later, the Court adopted Iredell's view as the better reading of the founding understanding.

The states respond, fast

The reaction was immediate and nearly universal. Within days of the decision, a resolution for a constitutional amendment was introduced in Congress. Other states, including Massachusetts, faced lawsuits of their own from creditors and were alarmed. State legislatures passed resolutions demanding an amendment.

Georgia went further. Its House of Representatives passed a bill declaring that any federal marshal or other person who tried to enforce the judgment would be guilty of a felony punishable by the most severe penalty. The bill does not appear to have become law, but the message was unmistakable.

Here is the remarkable part. Instead of defying the Court indefinitely, or nullifying the judgment, the states used the process the Constitution gives the people for correcting the Constitution. Congress proposed the Eleventh Amendment on March 4, 1794, by the required two-thirds of each house. By February 7, 1795, the necessary three-quarters of the states had ratified it. After a long delay in collecting the states' notices of ratification, President John Adams did not formally announce the ratification until January 1798. Of the more than eleven thousand amendments proposed over American history, very few have moved so fast; the broader numbers are in Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers.

The text, and the two words that matter most

The Eleventh Amendment reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Look at the opening: "shall not be construed." The amendment does not say "the judicial power is hereby reduced." It says the judicial power shall not be construed to reach such suits. That is the language of a correction. The people were telling the Court that it had read Article III wrongly, not that they were changing the rule. The amendment declared what they believed the Constitution had meant all along.

Notice also "commenced or prosecuted." The amendment reached suits already filed. In Hollingsworth v. Virginia (1798), the Supreme Court accepted that the amendment applied to pending cases and dismissed them, and it held that a constitutional amendment did not need the President's signature.

Hans v. Louisiana (1890): the text and the principle

The Eleventh Amendment's words cover suits against a state by citizens of another state or of a foreign country. What about a suit against a state by its own citizen?

That question came to the Court in Hans v. Louisiana (1890). Louisiana had issued bonds and then, by amendment to its state constitution, stopped paying interest on them. A Louisiana citizen who held the bonds sued the state in federal court, arguing that the default impaired the obligation of contracts, in violation of Article I. His argument was simple: the Eleventh Amendment, by its terms, did not apply to him.

The Supreme Court, in an opinion by Justice Joseph Bradley, ruled against him unanimously. Bradley reasoned that it would be anomalous to read the Constitution to protect states from suits by citizens of other states while leaving them open to suits by their own citizens. He relied on Hamilton's Federalist 81, on the assurances given in the ratifying conventions, and on Iredell's Chisholm dissent, which he called the correct view. The Eleventh Amendment, in this reading, does not create state sovereign immunity. It confirms a principle the Constitution already presupposed, which Chisholm had wrongly disregarded.

The strongest objection, answered

Here is the best case against the modern doctrine, put fairly. The Eleventh Amendment has a specific text. It bars suits by citizens of another state and by foreigners. It says nothing about suits by a state's own citizens. When the Court in Hans, and in later cases such as Seminole Tribe v. Florida (1996) and Alden v. Maine (1999), extended immunity beyond the text, it did exactly what conservatives criticize liberal judges for doing: it enforced a principle the judges found in the structure rather than the words. And the practical result in Hans was that a state was allowed to walk away from its debts while its own creditors had no federal forum. Wilson's view, the critic says, was the more democratic and more just.

The answer has three parts.

1. The amendment's own words point to a background principle. "Shall not be construed" is a rule of interpretation. It says the original Constitution should never have been read to authorize such suits. If Article III, properly construed, did not authorize suits by out-of-state citizens against unconsenting states, there is no reason it authorized suits by in-state citizens, who were never even mentioned in the diversity clause. Hans reads the amendment as the declaration it claims to be.
2. The founding record is unusually clear. Hamilton, Madison and Marshall all told ratifiers that states would not be dragged into federal court by private parties. When the Court said otherwise, Congress and the states reversed it with startling speed and near unanimity. It is hard to find a clearer expression of the original understanding than a constitutional amendment adopted within two years to restore it.
3. Immunity is not impunity. Sovereign immunity bars suits for money against an unconsenting state. It does not bar suits against state officers to stop ongoing violations of federal law, which the Court recognized in Ex parte Young (1908). It does not stop the federal government from suing a state. It does not stop states from consenting to suit, which many do by statute. And state voters can punish legislatures that stiff creditors. The doctrine allocates who may hale a state into court; it does not license lawlessness.

Conservatives can and do argue about the outer edges of the modern doctrine. But the core holding of Hans, that the Constitution did not strip unconsenting states of immunity from private suits, is well grounded in the founding record.

What Chisholm teaches now

The Court is not the only interpreter. The people of 1793 believed the Court had misread the Constitution, and they corrected it through Article V. That is the legitimate path, and it worked. Judicial review is real; judicial supremacy is not the last word when the people use the amendment process. We draw that distinction in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not and in Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read.

Federalism was a living concern from day one. The Anti-Federalist Brutus had warned that the federal judiciary would swallow the states, a fear examined in Brutus Warned in 1788 That Unelected Judges Would Swallow the States. Chisholm looked to many like the warning coming true in the Court's fourth year, and the states moved to stop it.

Text and original understanding work together. The Eleventh Amendment's own wording shows the ratifiers understood themselves to be restoring an original meaning, not inventing a new one. That is a model for how a free people should treat their Constitution: as a fixed law with a knowable meaning, and as a law they retain the power to correct when officials go astray.

The case in brief

1. In Chisholm v. Georgia (February 18, 1793), the Supreme Court held 4 to 1 that a South Carolina executor could sue Georgia over an unpaid Revolutionary War debt, with James Wilson declaring that Georgia was not sovereign for the purposes of the Union.
2. That ruling contradicted the assurances given to ratifiers, including Hamilton's in Federalist 81, and Justice Iredell's dissent defended the background rule of state sovereign immunity.
3. Congress proposed the Eleventh Amendment on March 4, 1794, and the states ratified it by February 7, 1795, using words, "shall not be construed," that declared the Court had misread Article III.
4. Hans v. Louisiana (1890) adopted Iredell's view and extended immunity to suits by a state's own citizens, a holding well supported by the founding record and limited by Ex parte Young.

What you can do: read Article III, Section 2 and the Eleventh Amendment one after the other on the Constitution page, then quiz your family with our civics test on how amendments are proposed and ratified.